Can a Westchester County village move its police disciplinary authority from the board of trustees to the village manager by local law, even though a special State act says only the trustees can hear charges?

Plain-English summary

The Village of Port Chester wanted to take police disciplinary authority away from its board of trustees and give it to a different officer (in some villages, the village manager). The Village Attorney asked whether a 1972 State special act on Westchester County village police departments (Unconsolidated Laws § 5711-q) blocked that.

The AG said no. The village could enact such a local law, subject to mandatory referendum.

The starting point is Op Atty Gen (Inf) No. 95-55. That earlier opinion concluded that a village subject to Village Law § 8-804 could enact a local law transferring police discipline authority from the board of trustees to the village manager, under Municipal Home Rule Law § 10(1)(ii)(e)(3) (supersession authority). The local law would be subject to mandatory referendum under § 23(2)(f) because it transfers a power of an elected officer.

The new question was whether Unconsolidated Laws § 5711-q changed that analysis for Westchester County villages. Section 5711-q is a 1972 special act that says, "[n]otwithstanding any other provisions of law, the employment of village policemen and . . . all matters concerning police or police departments in all villages in the county of Westchester shall be governed solely by the provisions of this article." Subdivision 9 specifically provides that disciplinary hearings may not be delegated and charges must be heard by the board of trustees, with a majority vote required to convict.

The AG concluded that § 5711-q is a "special law" (it applies only to villages in Westchester County), not a "general law" within the meaning of NY Const Art IX § 3(d)(1) and Municipal Home Rule Law § 2(5). Under the home-rule framework, a special law does not constrain local-law authority unless it deals with a matter of "state concern." Two factors led the AG to conclude that police discipline in Westchester villages is not a matter of state concern:

1. The opening "[e]xcept as otherwise provided by law" language in § 5711-q signals that the Legislature did not intend the special act to be exclusive in all events.

2. Other villages across the State are subject to Village Law § 8-804 and can use supersession to amend that statute. There is no rationally distinguishing reason why Westchester villages should have less flexibility than other villages on a question of internal disciplinary structure.

The AG also pointed to Civil Service Law §§ 75 and 76 and the Taylor Law (§ 204(2)) as parallel State frameworks that already let villages negotiate disciplinary procedures with police unions, which weakens any argument that the State has reserved disciplinary structure as a state-concern field. The Court of Appeals' decision in City of New York v Patrolmen's Benevolent Association was cited for the proposition that police bargaining is generally a "property, affairs or government" subject of the locality, not a state concern.

The opinion's conclusion: a Westchester village may, by local law subject to mandatory referendum, transfer disciplinary determinations from the board of trustees to another village officer. Section 5711-q does not block that.

Currency note

This opinion was issued in 1998. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Note that police discipline has been a particularly active area of legislation and litigation since 1998, including changes to Civil Service Law disciplinary procedures, federal and state policing legislation, and significant New York Court of Appeals decisions on whether police discipline is a mandatory subject of collective bargaining. The 1998 opinion's home-rule analysis remains a useful baseline but the current legal framework is materially different.

Common questions

Why does the special law / general law distinction matter?

Under Article IX § 2(c)(ii) of the State Constitution, local governments can enact local laws on enumerated subjects "whether or not they relate to the property, affairs or government of such local government, except to the extent that the legislature shall restrict the adoption of such a local law relating to other than the property, affairs or government of such local government." The Legislature can restrict local law on subjects outside the "property, affairs or government" category. A "general law" applies uniformly across local governments; a "special law" applies only to a designated subset. Special laws generally have weaker preemptive force, especially when they address subjects that overlap with home-rule authority.

What is "supersession"?

Supersession is the home-rule authority to amend or override a State Village Law (or Town Law) provision by local law. Municipal Home Rule Law § 10(1)(ii)(e)(3) authorizes villages to supersede general-law Village Law provisions on subjects within their home-rule powers. Supersession is not unlimited; the Legislature can prohibit it on specific subjects.

Why a mandatory referendum?

Municipal Home Rule Law § 23(2)(f) requires a mandatory referendum on any local law that transfers a power of an elected officer. The board of trustees is elected; transferring its disciplinary authority to a non-elected officer (the village manager) triggers § 23(2)(f).

Could Port Chester have skipped the referendum by writing the local law differently?

Not as long as the local law removed disciplinary authority from the elected board of trustees. The § 23(2)(f) trigger is the transfer of an elected officer's power, not the specific form of the transfer. A local law that left disciplinary authority with the trustees but added a different officer (e.g., as a procedural option) might avoid the trigger, but that would not accomplish the village's goal.

What about police union contracts?

Civil Service Law § 76(4) and the Taylor Law (§ 204(2)) allow disciplinary procedures to be supplemented, modified, or replaced by collective bargaining agreements. A village wanting to restructure police discipline may need both a local law and a collective-bargaining agreement, depending on the union contract and the relevant Civil Service Law procedure.

Is there a separate constitutional issue here?

The opinion did not raise one. The framework rests on Article IX § 2 (home rule) and § 3 (general/special law). A Westchester village implementing this kind of local law would still need to comply with the State Constitution, Civil Service Law due-process requirements, and any applicable bargaining obligations.

Background and statutory framework

The legal architecture for police discipline in a Westchester village in 1998 was made of three layers.

Layer one is general Village Law: Village Law § 8-804 establishes the basic procedure (board of trustees or board of police commissioners adopts rules and regulations; ultimate decision rests with that board; hearing officers may conduct the hearing).

Layer two is the special law: Unconsolidated Laws § 5711-q applies "[n]otwithstanding any other provisions of law" to Westchester County villages, providing a parallel and stricter regime. Subdivision 9 requires that charges be heard by the board of trustees itself (no delegation) and that a majority of trustees vote to convict.

Layer three is the Civil Service framework: Civil Service Law § 75 sets the substantive discipline-for-cause rule for permanent competitive-class employees; § 76 sets the appeal procedure and permits modification by Taylor Law agreement; § 204(2) requires bargaining over terms and conditions of employment.

Home rule sits on top: Article IX § 2 grants local governments authority to legislate on their "property, affairs or government" and on enumerated subjects including the powers, duties, qualifications, number, mode of selection, removal, terms of office, compensation, hours, protection, welfare, and safety of officers and employees. Municipal Home Rule Law § 10(1)(ii)(a) and (e) implements that authority and includes the supersession power.

The 1998 opinion synthesizes the layers into a single principle: where a special State law overlaps with home rule on a subject that is not a matter of state concern, the locality can override the special law by local law, subject to applicable referendum requirements.

Citations

• N.Y. Const. art. IX, § 2 (home rule grant).
• N.Y. Const. art. IX, § 2(c)(i) (property, affairs, government).
• N.Y. Const. art. IX, § 2(c)(ii)(1) (officers and employees).
• N.Y. Const. art. IX, § 3(d)(1) (general law definition).
• Civil Service Law § 75 (discipline for cause).
• Civil Service Law § 75(1)(a), (b) (covered employees).
• Civil Service Law § 76 (appeal procedure).
• Civil Service Law § 76(4) (modification by Taylor Law agreement).
• Civil Service Law § 204(2) (mandatory subjects of bargaining).
• Municipal Home Rule Law § 2(5) (general law definition).
• Municipal Home Rule Law § 2(12) (special law definition).
• Municipal Home Rule Law § 10(1)(i), (ii)(a) (home rule authority).
• Municipal Home Rule Law § 10(1)(ii)(a)(1) (powers, duties, conditions of employment).
• Municipal Home Rule Law § 10(1)(ii)(e)(3) (supersession authority).
• Municipal Home Rule Law § 23(2)(f) (mandatory referendum when transferring elected officer's power).
• Unconsolidated Laws § 5711-q (Westchester County village police departments).
• Unconsolidated Laws § 5711-q(9) (no-delegation of disciplinary hearings).
• Village Law § 8-804 (general village police discipline procedure).
• L 1972 Ch 891 (enacting Unconsolidated Laws § 5711-q).
• Op Atty Gen (Inf) No. 95-55 (village by local law may modify Village Law police discipline).
• City of New York v Patrolmen's Benevolent Association, 89 NY2d 380 (1996) (police bargaining as property/affairs/government subject).
• Matter of Kelley v McGee, 57 NY2d 522 (1982) (state-concern analysis for special laws).
• Adler v Deegan, 251 NY 467 (1929) (state-concern preempts home rule).
• Board of Education, Huntington v Teachers, 30 NY2d 122 (1972) (disciplinary procedures as mandatory bargaining subjects).

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/I_98-7_pw.pdf

Original opinion text

NY CONST, ART IX, §§ 2, 2(c)(i) and (ii)(1), 3(d)(1); CIVIL
SERVICE LAW §§ 75, 76, 204(2); MUNICIPAL HOME RULE LAW §§ 2(5)
and (12), 10(1)(i), (ii)(a), (ii)(e)(3), 23(2)(f); UNCONSOLIDATED
LAWS, § 5711-q; VILLAGE LAW § 8-804; L 1972 CH 891.
A village in Westchester County may amend the provisions of
the Unconsolidated Laws governing discipline of police officers
to transfer the responsibility for making disciplinary
determinations from the board of trustees to some other officer.
The local law is subject to a mandatory referendum.

February 11, 1998
Anthony M. Cerreto, Esq.
Village Attorney
Village of Port Chester
10 Pearl Street
Port Chester, NY 10573

Informal Opinion
No. 98-7

Dear Mr. Cerreto:
You have informed us that the village is considering
enacting a local law that would remove the responsibility for
conducting disciplinary proceedings for village police officers
from the jurisdiction of the village board of trustees. You have
referred to our Informal Opinion No. 95-55, in which we found
that a village by local law, subject to mandatory referendum, may
amend provisions of the State Village Law to transfer the
responsibility for determining discipline of a police officer
from the village board of trustees to the village manager. Your
inquiry is whether your village is prohibited from taking similar
action by reason of special State legislation governing village
police departments in Westchester County. Unconsolidated Laws
§ 5711-q.
Informal Opinion No. 95-55 construed section 8-804 of the
Village Law, which establishes a procedure for disciplining
village police officers. Under that provision, the village board
of trustees or the board of police commissioners, if established,
is authorized to adopt rules and regulations for the
determination of charges against members of a village police
department. The ultimate decision on discipline is made by the
board of trustees or the board of police commissioners. We found
that under section 8-804 the regulations may provide for the
conduct of a hearing by any village officer but the ultimate
decision regarding discipline must be made by the board of
trustees or board of police commissioners. The question
presented was whether a village may enact a local law authorizing

2
the village manager, instead of the board of trustees or the
board of police commissioners, to make the ultimate determination
of discipline.
We concluded that a village may enact such a local law under
Municipal Home Rule Law § 10(1)(ii)(e)(3), which authorizes the
board of trustees, subject to some restrictions, to enact a local
law amending or superseding a provision of the Village Law
dealing with a subject which falls within the scope of home rule
authority. The opinion reasoned that the board of trustees is
authorized to determine the powers, duties, qualifications and
other terms and conditions of employment of its officers and
employees. Municipal Home Rule Law § 10(1)(ii)(a). Therefore,
we found that the board of trustees may enact a local law
amending section 8-804 to give the village manager authority to
determine the discipline of police officers in accordance with
findings of fact made at the hearing. The local law would
transfer the power the board of trustees to determine discipline.
Therefore, the local law would be subject to a mandatory
referendum under section 23(2)(f) of the Municipal Home Rule Law,
which provides that a local law transferring a power of an
elected officer is subject to a mandatory referendum.
Your village's police department is governed by a special
State law applicable to police departments in Westchester County.
Under section 5711-q of the Unconsolidated Laws:
Notwithstanding any other provisions of law,
the employment of village policemen and the
establishment, organization and operation and
all matters concerning police or police
departments in all villages in the county of
Westchester shall be governed solely by the
provisions of this article except that
nothing herein shall be construed to prohibit
the establishment of police pension funds in
such villages in accordance with the
provisions of this chapter.
Subdivision 9 of section 5711-q defines the procedure for
bringing charges and disciplining village police officers in
Westchester County. Under subdivision 9, the board of trustees
or municipal board (probably a reference to the board of police
commissioners, if established) has power to adopt rules and
regulations for the hearing and determination of charges made
against members of the village police force. Unlike section
8-804 of the Village Law, subdivision 9 provides that the conduct
of the hearing may not be delegated and charges must be heard by

3
the board of trustees or board of police commissioners and an
affirmative vote of a majority of these members is necessary in
order to convict a police officer on charges proffered.
In our view, regardless of the language of section 5711-q on
non-delegation, your village may amend by local law subdivision 9
of section 5711-q of the Unconsolidated Laws to transfer
jurisdiction over disciplinary determinations from the village
board of trustees to another village officer. We base this view
on Article IX of the State Constitution and the Municipal Home
Rule Law, pursuant to which local governments have power to adopt
and amend local laws, not inconsistent with provisions of the
Constitution or any general law, relating to their property,
affairs or government and in relation to the powers, duties,
qualifications, number, mode of selection and other terms and
conditions of employment of their officers and employees.
NY Const, Art IX, § 2(c)(i), (ii)(1); Municipal Home Rule Law
§ 10(1)(i), (ii)(a)(1).
Article IX, § 2 of the State Constitution "grants
significant autonomy to local governments to act with respect to
local matters. Correspondingly, it limits the authority of the
State Legislature to intrude in local affairs . . .". City of
New York v Patrolmen's Benevolent Association, 89 NY2d 380, 387
(1996).
The New York State Constitution, Article IX, § 2(c)(ii)
grants to every local government the authority to adopt local
laws, consistent with the Constitution and general State laws,
relating to specific subjects "whether or not they relate to the
property, affairs or government of such local government, except
to the extent that the legislature shall restrict the adoption of
such a local law relating to other than the property, affairs or
government of such local government . . .". Therefore, the
Legislature may restrict the adoption of local laws only to the
extent that their subjects fall outside of the category
"property, affairs or government".
Two inquires are relevant under Article IX, § 2. One is
whether a particular statute is one of general or special
applicability. The other is whether "the subject matter of the
statute is of sufficient importance to the state generally to
render it a proper subject of State legislation". Matter of
Kelley v McGee, 57 NY2d 522, 538 (1982). Where the subject of a
State statute deals with a matter of State concern, a local law
is required to be consistent with the statute even though it may
be a "special law" within the home rule definition. See, Matter
of Kelley v McGee, 57 NY2d at 538. If the subject of a State
statute is to a substantial degree a matter of State concern,
although mingled with it also are concerns of the locality, the

4
statute is a matter of State concern and cannot be amended or
superseded by a local government. Adler v Deegan, 251 NY 467,
489-491 (1929). Nor would the passage of the State law be
subject to a home rule request. Id.
Here it is clear that section 5711-q(9) is not a "general
law". For home rule purposes, a "general law" is a "law which in
terms and in effect applies alike to all counties, all counties
other than those wholly included within a city, all cities, all
towns or all villages". NY Const, Art IX, § 3(d)(1); Municipal
Home Rule Law § 2(5). The State act governing police departments
and in particular disciplining of police officers in villages in
Westchester County is a special, rather than a general law. See,
Municipal Home Rule Law § 2(12), defining a special law.
Next, we believe it is clear that the determination of
disciplinary procedures for village police officers falls within
home rule authority. Op Atty Gen (Inf) No. 95-55; see also,
City of New York v Patrolmen's Benevolent Association,
89 NY2d 380 (1996), in which the Court of Appeals found that a
State law regulating the bargaining process between the City and
its police officers relates to the "property, affairs or
government" of the City and, therefore, was subject to a home
rule request.
Finally, recent Court of Appeals precedent leads us to
believe that the procedure for disciplining police officers in
villages in Westchester County is not a matter of State concern.
See, City of New York v Patrolmen's Benevolent Association,
89 NY2d 380. The language of the provision begins with "[e]xcept
as otherwise provided by law". Moreover, other villages in the
State are subject to the provisions of the Village Law and,
therefore, may utilize the supersession authority in order to
enact local laws amending or superseding Village Law provisions
governing the disciplining of police officers. These factors
militate against any determination that the procedure for
disciplining village police officers in Westchester County is a
matter of State concern.
Further, other provisions of State law provide authority for
conducting disciplinary proceedings which may apply to village
police officers in Westchester County. Section 75 of the Civil
Service Law provides that persons holding positions by permanent
appointment in the competitive class of the civil service or
holding certain positions by permanent appointment in the
classified service and who are exempt volunteer firemen or
honorably discharged veterans may not be removed or disciplined
except for incompetency or misconduct shown after a hearing upon

5
stated charges. Civil Service Law § 75(1)(a), (b). Section 76
of that law establishes the procedure for appeal of disciplinary
and removal actions imposed under section 75. Section 76 of the
Civil Service Law also provides that sections 75 and 76 may be
supplemented, modified or replaced by agreements negotiated under
the Taylor Law. Id., § 76(4). The Taylor Law requires that
public employers negotiate collectively with employee
organizations regarding the terms and conditions of employment.
Civil Service Law § 204(2). Disciplinary procedures are terms
and conditions of employment and, therefore, are mandatory
subjects of collective bargaining. Board of Education,
Huntington v Teachers, 30 NY2d 122 (1972). In that there are
parallel provisions of State law that may apply to disciplining
of village police officers in villages in Westchester County,
these factors also militate against concluding that the subject
provisions of the Unconsolidated Laws are matters of State
concern.
We conclude that a village in Westchester County by local
law may amend the provisions of the Unconsolidated Laws governing
discipline of police officers to transfer the responsibility for
making disciplinary determinations from the board of trustees to
some other officer. The local law is subject to a mandatory
referendum under section 23(2)(f) of the Municipal Home Rule Law.
The Attorney General renders formal opinions only to
officers and departments of State government. This perforce is
an informal and unofficial expression of the views of this
office.
Very truly yours,

JAMES D. COLE
Assistant Attorney General
In Charge of Opinions